Our Opinion: Court should force UNC to come clean on sex misconduct

The Old Well on campus at the University of North Carolina in Chapel Hill is shown in this file photo. UNC officials are defending a lawsuit brought by media outlets seeking the names of students the university has disciplined for sexual misconduct.

Gerry Broome | AP photo

Posted
Wednesday, February 7, 2018 10:01 pm

A Times editorial

It's not just a laugh line from "Animal House." Students at the University of North Carolina really are put on double-secret probation.

UNC Chapel Hill refuses to identify the students it disciplines for sexual misconduct despite an exception to federal student privacy laws allowing the information to be released and a state law saying it's public record.

The Daily Tar Heel student newspaper, WRAL-TV owner Capitol Broadcasting, The Charlotte Observer and the Durham Herald-Sun are suing UNC for the information under the North Carolina Public Records Act.

UNC had previously argued that the federal Family Educational Rights and Privacy Act makes the disciplinary records private, but plaintiffs pointed to a FERPA provision granting colleges and universities discretion to name students found responsible for "any crime of violence" or "non-forcible sex offense" and disclose their violations and the sanctions imposed.

In a tone-deaf N.C. Court of Appeals filing, the university now admits it can release the information - it just doesn't want to.

"The University of North Carolina at Chapel Hill has exercised its discretion and determined that disclosure of this information is not in the best interest of the University or its students," Special Deputy Attorney General Stephanie Brennan wrote in the defendants-appellees' brief.

Private colleges aren't subject to state sunshine laws and can choose to withhold disciplinary records. Public universities like UNC, which are taxpayer-supported arms of state government, shouldn't have the luxury of flouting public records law merely because they feel like it.

UNC tried to cloud the case by listing a litany of excuses. The university says naming the students could harm them and could lead to speculation over the identities of victims, who in some cases are past romantic partners.

"This court, like the trial court, should reject as outside the scope of this appeal any policy arguments that the defendants may attempt to advance and should disregard as irrelevant the voluminous affidavits and attachments filed by the defendants," media law attorney Hugh Stevens wrote in the plaintiffs' appellate brief.

In the interest of full disclosure, Stevens' firm provides legal services to the North Carolina Press Association and its members, including The Wilson Times, which is not a party to this case.

The principles of transparency and accountability demand that UNC identify the students it judges responsible for sexual misconduct. Releasing the information would allow the public and press to grade UNC on how it handles such cases - and maybe that's what officials fear most.

U.S. Department of Education guidance on Title IX, the federal law preventing sex discrimination, requires colleges to investigate complaints of sexual assault and sexual harassment. That places them in a tough spot, as the former is a high-grade felony and the latter is a tort, or civil infringement. College administrators don't have the expertise to adjudicate either type of offense.

At their worst, college and university hearings are kangaroo courts where amateur investigations lead to sham trials. Some students disciplined for sexual misconduct have successfully sued for violations of their due process rights.

Title IX tribunals aren't good for survivors, either, as some victims report sexual assault to college officials instead of law enforcement. Police and internal investigations are not mutually exclusive and can run parallel, but victims might be less likely to call the cops if they pursue campus discipline first.

A first-degree rape conviction carries a 12-25-year prison sentence in North Carolina, while expulsion is the harshest penalty a college can dole out. Sexual assault should be a matter for police and prosecutors, not deans and chancellors who are hopelessly out of their depth.

If the courts force UNC to release its disciplinary records, will the news outlets seeking them learn that some students have been punished unfairly and others accused of violent crimes have been left lurching about the campus to reoffend? Perhaps that's the true motive for all the secrecy.

In order to explore the problem of sexual misconduct at our state's flagship public university and judge the fairness and effectiveness of UNC's internal investigations, it's time to examine this issue in the light of day. Sunshine, after all, is the best disinfectant.